The movement toward a uniform standard for confidentiality in mediation among the states is one that from the outset casts off into choppy waters, marked by pitching cross-currents of remarkable force

Reuben, Richard C

Rogers, Nancy H.

English

University of Missouri School of Law

University of Missouri School of Law Scholarship RepositoryFaculty Publications Faculty ScholarshipWinter 1998Choppy WatersRichard C. ReubenUniversity of Missouri School of Law, reubenr@missouri.eduNancy H. RogersFollow this and additional works at: https://scholarship.law.missouri.edu/facpubsPart of the Dispute Resolution and Arbitration CommonsThis Article is brought to you for free and open access by the Faculty Scholarship at University of Missouri School of Law Scholarship Repository. It hasbeen accepted for inclusion in Faculty Publications by an authorized administrator of University of Missouri School of Law Scholarship Repository. Formore information, please contact bassettcw@missouri.edu.Recommended CitationRichard C. Reuben and Nancy H. Rogers, Choppy Waters, 5 Dispute Resolution Magazine 4 (1998).Available at: https://scholarship.law.missouri.edu/facpubs/82677 ~ChoppyWaterMovement toward a uniform confidentialityUN privilege faces cross-currentsT he movement toward a uniform stan-dard for confidentiality in mediationamong the states is one that from theoutset casts off into choppy waters,marked by pitching cross-currents ofremarkable force.One current suggests strong sup-port for additional protections for confi-dentiality, particularly inmediation. Every year Anthe states add to themore than hundreds of Overviewstate and federal stat-utes that protect confidentiality inmediation. Moreover, the American BarAssociation, acting through the Sectionof Dispute Resolution, has joined forceswith the National Conference ofCommis-sioners on Uniform State Laws to draftlaws to regulate various aspects ofmediation, and the first issue theydecided to focus on was confidentiality.The other current seems to opposeadditional protections for confidentialityjust as strongly. The courts in recentyears have increasingly heard pleas toprotect confidentiality on a variety offronts - from presidents to psychothera-pists to ombudsmen - and have gener-ally rejected such requests. Rather, theyhave supported the traditional notionthat the law has a right to "everyperson's evidence."A vivid displayFor most of the nation, this cross-current could be most vividly seen in thenational drama that has been Monicagate,just as it was seen two decades ago inWatergate. On one hand, IndependentCounsel Kenneth Starr claimed a need foraccess to evidence in order to determineRichard C. Reuben is the associatedirector of the Stanford Center onConflict and Negotiation.Nancy H. Rogers is a professor oflaw at Ohio State University College ofLaw and can be reached atnrogers@magnus.acs.ohio-state.edu.lichard C. Reuben and Nancy H. Riwhether President Clinton had commit-ted an impeachable offense, and thecourts generally backed his requests outof regard for the tradition of the law'saccess to evidence that will helpestablish truth. On the other, privacy is acherished American value, and Starr'sefforts to find out about intimateconversations Monica Lewinsky hadwith her mother, Marcia Lewis, aboutwhat the president may have told hislawyers or what his bodyguards mighthave witnessed often seemed offensiveto the public at large.Such is the state of the nation'sdebate over confidentiality at the turn ofthe millennium.And such is the strait through whichthe navigators of a uniform confidential-ity privilege for mediation must navigate.The articles in this edition ofDispute Resotution Magazine reflectthese troubled waters. Some authorsstrongly support a mediation privilege,arguing that confidentiality is necessaryif the full and frank discussion that is themortar of mediation is to be achieved,and if public confidence in the process isto be inspired. Others, however, opposesuch a privilege just as strongly,contending that the costs of the privilegein terms of lost evidence, the condoningof lying and other harms outweigh anybenefit that is to be claimed, and thatcurrent law is adequate to meet theconcerns of privilege supporters. Stillothers argue that at least in somemediations, particularly those involvingpublic policy, any need for confidential-ity must give way to the press'constitutional right to report publichearings, and that such access isnecessary to preserve accountable deci-sion making in a representative democ-racy.The drafters expect to issue a drafton confidentiality for comment aroundthe first of January, and to completedrafting by Spring. Surely they will findthemselves balancing the competingviews seen in these pages. On one hand,a mediation privilege may encourage theparties to speak candidly during media-tion, without concern that their wordsmay be used against them in the disputethey are trying to settle or with thepublic. On the other hand, a statutedrafted more broadly than necessarymay result in unnecessary loss ofevidence and in shrouding from publicscrutiny some matters of significance.Weighty questionsThe particular questions presentedby such a weighty balancing effort arechallenging, and existing law varieswidely. What is a mediation meritingconfidentiality protection? When does itstart and end? Should non-disputingparties who participate in the mediation -such as friends of the parties, attorneys,or expert witnesses - fall within aconfidentiality privilege? Should they beable to assert the privilege? Should amediator? Should a mediation privilegepreclude admission of mediation evi-dence in a criminal dispute, and if so,what kinds of criminal disputes? Whattypes of threats made in mediationshould be disclosed? Should mediatorsand parties be free to testify and speakup about child abuse?The articles in these pages go a longway to informing the public dialoguewhat the fostering of a mediationprivilege ultimately represents - andthose interested in speaking up arestrongly encouraged to do so. Theproject has established a web site atwww.stanford.cdu/group/sccn/media-tion, which includes comprehensiveinformation about the project, its draft-ers, public participation opportunities,etc. Formal drafts for comment areexpected to be posted by early January.The debate is rich and invigorating.Please join it.Dispute Resolution MagazineWinter 1998ispute Resolution Magazine Winter 1998

Choppy Waters

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Choppy Waters

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